Neutral Citation Number: [2015] EWCA Civ 206 Case No: B2/2013/0584 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM LEEDS COUNTY COURT His Honour Judge Gosnell 1LS50081 Royal Courts of Justice Strand, London, WC2A 2LL Date: 12/03/2015 Before : LORD JUSTICE LONGMORE LORD JUSTICE RYDER and LORD JUSTICE BRIGGS - - - - - - - - - - - - - - - - - - - - - Between : (1) MELVYN LEVI Appellants (2) CAROLE LEVI - and - (1) KENNETH BATES Respondents (2) LEEDS UNITED FOOTBALL CLUB LIMITED (3) YORKSHIRE RADIO LIMITED - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR SIMON MYERSON QC (instructed by FORD & WARREN SOLICITORS) for the APPELLANTS MR JACOB DEAN (instructed by CARTER RUCK) for the FIRST RESPONDENT Attended by BRANDSMITHS for the SECOND RESPONDENT The THIRD RESPONDENT did not appear and was not represented Hearing date : 18th February 2015 - - - - - - - - - - - - - - - - - - - - - Judgment Judgment Approved by the court for handing down. LEVI and another -v- BATES and others Lord Justice Briggs : 1. This appeal raises the important question: to what extent, if at all, may a person who has been harmed (or who anticipates harm) from harassment aimed at someone else (the target) avail herself of the protection of the civil remedies afforded under the Protection from Harassment Act 1997 (“the Act”)? In this case the Second Appellant, Mrs. Carole Levi, was found by the trial judge to have suffered alarm and distress as the result of the pursuit by the First Respondent, Mr. Kenneth Bates, of a personal grudge against her husband, Mr. Melvyn Levi, the First Appellant, arising out of their mutual business dealings, which manifested itself in conduct between 2005 and 2011 which the judge found amounted to the statutory tort of harassment against him. But Mrs. Levi failed in her claim against Mr. Bates and others because the judge also found that, save on one occasion, his conduct was not targeted at her. Accordingly, that one instance which the judge found was so targeted could not amount to a course of conduct sufficient to constitute the statutory tort of harassment, as against her. 2. The concept of “targeting”, as a necessary element in the statutory tort of harassment, is not to be found expressly set out anywhere in the Act itself. Rather, it has emerged from judicial interpretation of the statutory definition of the tort, first by this court in Thomas v News Group Newspapers Limited [2001] EWCA Civ 1233, [2002] EMLR 78 in which, at paragraph 30, Lord Phillips MR said that “harassment” is generally understood as describing conduct “targeted at an individual”. More recently, in Dowson (and others) v Chief Constable of Northumbria Police [2010] EWHC 2612 (QB), in a passage expressly adopted by the trial judge in the present case, Simon J said that it was essential as a matter of law, for a claim in harassment to proceed, that it be proved (inter alia) that the relevant conduct “is targeted at the claimant”. 3. In many, perhaps most, harassment cases, including almost all of the reported cases, this question will not arise. The claimant is indeed the intended target of the perpetrator’s course of conduct. But it may not infrequently happen that a course of conduct which, because it is targeted at him, is clearly harassment as against A, causes just as much alarm and distress to B, even though B is not the intended target of the perpetrator’s misconduct, although foreseeably likely to be harmed by it. Borrowing a phrase used in cross-examination at the trial, B suffers collateral damage from the perpetrator’s conduct targeted at A, the risk of which the perpetrator knew or ought to have known, but about which he was wholly indifferent. 4. Collateral damage in the form of foreseeable alarm and distress may arise in two quite distinct ways. B may be the spouse or partner of A, or a close member of the same family, and may suffer alarm and distress merely because the harassment of A alarms or distresses B out of her natural concern and sympathy for A. But the effect of the perpetrator’s conduct upon B may arise not merely from her sympathy for A, but because the particular nature of the perpetrator’s course of conduct causes her direct alarm and distress, although not targeted at her. Sometimes B may be affected in both those ways. As the judge put it, in relation to two of the aspects of Mr. Bates’ conduct of which complaint was made: “They are not targeted at her (Mrs. Levi) but she is affected by it both out of concern for her husband and in this example out of concern for her own safety too.” Judgment Approved by the court for handing down. LEVI and another -v- BATES and others B may, furthermore, be more vulnerable than A to being harmed by the relevant course of conduct, so much so that she may be harmed while A has the fortitude simply to shrug it off. The Facts 5. The unfortunate events which led to this litigation arose from the affairs of Leeds United Football Club. Mr. Levi was a prominent member of a consortium of local businessmen (known as the Yorkshire Consortium) formed to rescue the club from financial collapse by taking it over through the medium of a limited company vehicle in 2004. The takeover proved to be a temporary palliative, and the club was later taken over again (through a purchase of shares in the vehicle company) by a consortium led by Mr. Bates. Even this did not prevent the club eventually going into administration, and it was later rescued by another company promoted by Mr. Bates called Leeds United Football Club Limited, the Second Respondent, in May 2007. Its parent company, Leeds City Holdings, also beneficially owned Yorkshire Radio Limited, the Third Respondent which operated, at least in 2010, as the club’s own local radio station. The Second Respondent attended the appeal by solicitors to adopt the submissions made on behalf of the First Respondent. The Third Respondent did not attend and was not represented. Through a 76% shareholding, Mr. Bates was at the material time in de facto control of the club, and of the Second and Third Respondents. This enabled him to write a regular column in the club’s published match programme for each home game, and to direct the making of announcements on the radio station. By those methods Mr Bates’ views were communicated to a potential audience of more than 100,000 supporters of the club. 6. Business transactions which occurred during the successive changes in the control of the club, between companies owned or controlled by Mr. Bates, Mr. Levi and by a Mr. Weston, Mrs. Levi’s former husband, led Mr. Bates to harbour serious grievances against Mr. Levi and Mr. Weston. The first related to a call option granted to the Bates consortium over shares in the Yorkshire Consortium’s vehicle company. The second related to a debt owed to the club by a company owned by Mr. Weston, and a dispute whether that debt could be set off against a much larger debt owed by the club to another company owned by Mr. Weston and Mr. Levi. It is for present purposes irrelevant whether Mr. Bates’ grievances were real or imagined. The present proceedings, and libel proceedings by Mr. Levi which preceded them, arise out of the manner in which Mr. Bates sought to vent his ire upon Mr. Levi by reason of those grievances, mainly in editions of the club’s match programme, but also by announcements on the radio station. 7. In his careful and clear reserved judgment handed down on 7th June 2012, HHJ Gosnell provided, at paragraph 7, a succinct summary of the conduct of Mr. Bates and the other two Respondents alleged to amount to harassment. I can do no better than quote it verbatim: “ 7 The allegations of harassment There are a number of allegations of harassment pleaded by the Claimants. The fact that the particular words were used is not disputed by the Defendants as they Judgment Approved by the court for handing down. LEVI and another -v- BATES and others are mainly recorded in documents. It is fair to say that the Defendants deny that the words used are capable of amounting to harassment and have a number of other technical arguments in respect of the same which I will deal with later. I will accordingly set out all the allegations of harassment made by the Claimants so that in due course I can decide whether any or each of them are capable of amounting to harassment. Where I have set out an article written by the First Defendant this is an extract from his column in the match programme unless stipulated otherwise: a) In an article entitled "This is The Story Behind the Recent Headlines" published in the programme on 25th September 2006 the First Defendant claimed that the First Claimant was claiming that he "was going to get the club back". He also stated that the First Claimant and another were acting like a "pair of money grabbing spivs". b) In an article entitled "Making Steady Progress But There is Still A Long Way to Go" published in the programme on 28th September 2005 the First Defendant wrote " we are saving Melvyn Levi's free tickets which reduces our attendance by 3". He concluded the article: "on a final note, what exactly was Melvyn Levi's involvement in the Bramley League Club? I hear all sorts of stories and understand that their ground is now covered in housing. How did that come about?" c) In an article entitled "Just to Bring You Up To Speed" published in the programme on 17th October 2006 the First Defendant called the First Claimant a "shyster" and claimed the First Claimant was trying to blackmail him.